Europol to be given
access to the S.I.S., then custody?
- Europol to be allowed to amend and add to records on the Schengen
Information SystemEU working parties are to begin making
preparations to give Europol access to the Schengen Information
System (SIS). Both legal changes and technical measures are necessary,
and work is to begin immediately. The proposals will not just
allow Europol to consult data, but to add and amend it as well.
Under the two-stage EU Presidency proposal, phase one covers
"immediate access to all information" with a "partial
download" facility. Phase two provides for the:

"possibility of updating SIS by adding, deleting and
modifying information"

Europol has long wanted access to the SIS and given the failure
of several of their "analysis work files" because of
a reluctance of member states to share their intelligence data,
being able to trawl the SIS for information would give the agency
access to extensive EU-wide data. Law enforcement and administrative
agencies' access to the SIS is restricted to certain categories
of data (see below) but it is presumed that Europol will have
full access.

Access or custody?

Allowing Europol to add information to the SIS would give
another operational role to the agency, enabling it to enter
names of suspects in alerts under Article 99 so that they are
subject to "discrete surveillance" and "specific
checks" (including passenger checks).

The further possibility that Europol could also delete and modify
information would effectively make Europol custodian of the database.
At present, data can only be added by authorities in the member
states, and only the state which entered information can amend
or delete it (although the supervisory body on data protection
can order its deletion). If the phase-two proposals are implemented,
Europol would be the only law enforcement agency with central
executive powers over data on the SIS (since the member states
only have jurisdiction over their own data). This would raise
a number of highly contentious legal issues with regard to data
protection, privacy and civil liberties.

A technical and legal issue, but not a political one?

In June, 1999, an EU action plan on organised crime (9423/99
CRIMORG 80, 21.6.99) called for Europol to have access to the
SIS. Six months later, negotiations on SIS II (see below) had
just begun and Germany proposed that Europol should feature in
the plans for the new system. The new proposal suggests that
political agreement was reached in the 1999 action plan and implies
that no further debate is necessary. But at the time France objected
vehemently, stating that:

"While the possibility of giving Europol access to
SIS data has been mentioned, there are currently no plans to
give Europol any kind of role within SIS" (5495/00,
19.1.00)

Regardless, the preparation of technical and legal measures
is underway. This is an example of how commitments in JHA action
plans, which are not subject to parliamentary scrutiny, have
far reaching consequences.

Databases to be linked by stealth

Article 6(2) of the 1995 Europol Convention expressly forbids
the Europol database to be linked to other law enforcement databases:

"The computerized system of collected information
operated by Europol must under no circumstances be linked to
other automated processing systems, except for the automated
processing systems of the national units."

If Europol is allowed to add data to the SIS, a de facto link
between the Europol system and the SIS will be established. Although
the two databases are unlikely to be coupled by technical means,
centralised access at Europol HQ in the Hague, and the likelihood
that Europol officers will enter data from analysis files onto
the SIS would have the same effect.

Background

The SIS, Europe's biggest law enforcement database, was created
under the Schengen Agreement of 1985 and went online in March
1995. Member states contribute data to the SIS on:

- persons wanted for arrest for the purpose of extradition;
- persons to be refused entry to the Schengen area because of
a danger to national security or public order; or concerning
aliens who have contravened national provisions governing entry
and residence;
- missing people, minors or people whose detention has been ordered;
- persons wanted for arrest for appearing in court as a witness
or suspect; persons suspected of offences; or to serve a custodial
sentence;
- persons to be subjected to discrete surveillance and specific
checks (including passengers) for: criminal investigation; or
averting a threat to public safety or national security;
- "objects": vehicles, firearms, documents or banknotes
which have been stolen or lost .

In May 1999, the SIS contained nearly ten million records, including
more than 1.3 million names and aliases (these are the latest
figures in the public domain, and perhaps the last: see: No more Schengen reports

All the EU countries except the UK and Ireland participate in
the SIS, as do Norway and Iceland who opted into Schengen provisions
under the Amsterdam Treaty protocol. The applications from the
UK and Ireland to join have now been accepted (Ireland's was
approved last month) and work on developing SIS II, which will
also allow the accession states to participate, is well underway.